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All crimes in Colorado consist of "elements." An element is a fact that the prosecutor must prove beyond a reasonable doubt for the defendant to be convicted. In this section, our Colorado criminal defense attorneys discuss the elements of each crime. Then we explain effective ways to defend against the charge, and what penalties a conviction may carry.

Getting arrested for DUI does not mean you will be convicted. Police misconduct, defective breathalyzers and crime lab mistakes may be enough to get your charges lessened or dismissed. Visit our page on Colorado DUI Laws to learn more.

1.1. Possession

Actual possession is when you have the bomb or other device in your physical possession.13

Actual possession is when you have the bomb or other device in your physical possession.

Constructive possession, on the other hand, is when you have control over the device without actually having possession or custody of it.14

Example: Olaf is arrested while carrying a Molotov cocktail. The police then get a California search warrant for his home and find several hand grenades in his garage.

Olaf had actual possession of the Molotov cocktail—he was carrying it. And he had constructive possession of the hand grenades—because they were on his property, he is presumed to have control over them.

It is possible for more than one person to possess the same device.15 This issue is likely to come up with constructive possession cases.

Example: Olaf has a roommate named Anna. After he is arrested, he tells the police that he and Anna paid for the hand grenades together and consider themselves to both own them.

It is perfectly possible for the prosecutor to charge both Olaf and Anna with constructive possession of the hand grenades.

1.2. Of a destructive device

California law defines a “destructive device” as any of the following:

Any projectile containing explosive or incendiary material, including the type of ammo known as “ tracer ammunition” (other than tracer ammunition designed for use in shotguns),

Any bomb, grenade, explosive missile, or similar device, or any device for launching such a weapon,

Any weapon greater than 0.60 caliber that fires fixed ammunition, or any ammunition for such a weapon (but not shotguns, shotgun ammunition, or antique rifles or cannons),

Any rocket, rocket-propelled projectile, or similar device of a diameter greater than 0.60 inch and/or containing any explosive or incendiary material, and/or any launching device for such a device, except for devices used primarily for emergency or distress signaling purposes,

Any breakable container containing a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and with a wick or similar device capable of being ignited, except for devices made primarily as a source of light, and

Any sealed device containing dry ice or other chemically reactive material that is assembled for the purpose of causing an explosion.16

But “destructive devices” do not include bullets that contain or carry explosive materials.17

1.3. Knowledge

You are not guilty of Penal Code 18710 PC (formerly Penal Code 12303 PC) possession of a bomb or other destructive device unless you knew both:

That you possessed the device, and

That the item you possessed was a destructive device.18

Example: When Will's father dies, Will inherits his house and all his possessions. He moves into the house but doesn't have the time to sort through all the things in the attic.

It turns out that Will's late father collected weapons and owned several illegal rocket launchers, which are in the attic of the house Will owns and are now Will's.

But because Will does not know that he possesses these devices, he is not criminally liable under Penal Code 18710 PC.

Example: Tanya's boyfriend Frank gives her several hand grenades and asks her to keep them for him for a while. He tells her that they are just replicas and that he doesn't have space for them in his apartment.

Tanya is not guilty of possessing a bomb or other destructive device—because she does not know that the objects she is holding for Frank are actual destructive devices.

2. Penalties for Penal Code 18710 PC Possessing a Destructive Device

Penal Code 18710 PC (formerly Penal Code 12303 PC) possessing a destructive device is what is known as a “wobbler.” This means that it may be prosecuted and punished as either a misdemeanor or a felony, depending on

Unlike with many California crimes, if you are convicted of possessing explosives or a destructive device, the judge may not sentence you to California probation instead of jail or prison.22

In addition, a conviction for this offense will likely result in the destructive device being confiscated and destroyed.23

Enhanced penalties for certain situations: Penal Code 18715 PC

Penal Code 18715 PC provides for enhanced penalties if you possess an explosive device recklessly or maliciously, in one of the following locations:

A public street or highway,

In or near any theater, hall, school, college, church, hotel, or other public building,

In or near any private residence,

In, on, or near any aircraft, passenger train, car, cable car, or vessel that carries passengers for hire, or

In, on, or near any other public place ordinarily passed by human beings.24

If you are prosecuted under Penal Code 18715 PC because the prosecutor thinks they can prove your possession was reckless or malicious —then you will face felony penalties of two (2), four (4), or six (6) years in prison.25

Consequences for non-citizens

Finally, if you are not a United States citizen, you could face deportation proceedings if you are convicted under Penal Code 18710 PC – because possession of a destructive device is a deportable crime.26

3. Legal Defenses to Possessing a Destructive Device Charges

If you are arrested for Penal Code 18710 PC possession of a bomb/destructive advice, an experienced criminal defense lawyer can help you assert one or more legal defenses that could get your charges reduced or dismissed—or help get you acquitted.

These include:

You have a valid permit to possess the device

California law does allow you to possess otherwise illegal destructive devices if you have a permit to do so. These permits are issued by the California Department of Justice.27

Having a valid permit to possess explosives is what is known as an “affirmative defense” to the crime. This means that you bear the burden of producing evidence at your trial to show that you actually had a valid permit.28

However, if you produce enough evidence to raise a reasonable doubt as to whether or not you had a permit, then the prosecutor is responsible for proving beyond a reasonable doubt that you didn't have one.29

The item doesn't qualify as a “destructive device”

It is possible that the explosive device you are accused of possessing doesn't actually meet the legal definition of a destructive device.

“The legal definition of a “destructive device” is complicated. Most cops and prosecutors aren't experts on sophisticated weaponry, and they sometimes mistakenly charge people with Penal Code 18710 PC when what they had wasn't a destructive device at all. If your attorney understands the legal and technical nuances of this offense, then you can fight the charges on these grounds.”

You are exempt from prosecution

The following categories of individuals are exempt from prosecution under Penal Code 18710 PC:

Law enforcement officers who are on duty and acting within the scope of their employment,

Members of the U.S. armed forces who are on duty and acting within the scope of their employment, and

Firefighters who are on duty and acting within the scope of their employment.31

If you are in any of these exempt categories, the charges against you should be dismissed.

You were falsely accused/wrongly arrested

People falsely accuse each other of crimes for a variety of reasons—one of the main ones being to escape liability for their own criminal actions.

Unfortunately, it is relatively easy to “frame” someone else for a crime that consists only of possession—for example, by depositing the forbidden item in their house or car without their knowledge.

If this happens to you, you will absolutely want to work with a criminal defense attorney to gather and present all the facts that could help exonerate you.

Evidence against you is the result of an illegal search or seizure

Even if you are technically guilty of possessing explosives, if we can prove that the police discovered the device during an illegal search or seizure, the judge may have to dismiss the charges.

Law enforcement can only arrest you for possession of an illegal item when they have:

The penalties for this offense include imprisonment for two (2), three (3), or four (4) years.33

Penal Code 18730 PC sale or transportation of destructive device

If—instead of just possessing a bomb or destructive device—you sell or transport one, then you will be charged with a felony under Penal Code 18730 PC, and may face two (2), three (3), or four (4) years in prison.34

Penal Code 18740 PC criminalizes possessing, exploding, or igniting a destructive device with the intent to either

injure,

intimidate, or

terrify

another person. The jail term for this felony ranges from three (3) to seven (7) years.35

Similarly, if you ignite or explode a destructive device with the intent to commit California murder, then you will be charged with a felony under Penal Code 18745 PC and—if found guilty—would face life in prison without the possibility of parole.36

Penal Code 18750 and 18755 PC: exploding a device and causing injury or death

If you willfully and maliciously (not through mere negligence) explode or ignite a destructive device or other explosive, and you actually cause injury or death, you face even harsher penalties under Penal Code 18750 and 18755 PC.

Specifically, if you explode a device and cause injury to another person, you may be imprisoned for five (5), seven (7), or nine (9) years.37

If you willfully and maliciously explode a device and cause great bodily injury (GBI) or mayhem, you will be imprisoned in the state prison for life. And if the result is someone's death, you face life without the possibility of parole.38

You are guilty of burglary with explosives (also known as burglary of a safe or vault) even if you didn't succeed in opening the safe. This felony form of burglary carries a county jail sentence of three (3), five (5) or seven (7) years.40

Call Us for Help…

Call us for help...

If you or loved one is charged with Penal Code 18710 PC destructive devices and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Legal References:

1 Penal Code 18710 PC – Possession of [bombs and other] destructive devices prohibited; punishment. (“(a) Except as provided by this chapter, any person, firm, or corporation who, within this state, possesses any destructive device, other than fixed ammunition of a caliber greater than .60 caliber, is guilty of a public offense. (b) A person, firm, or corporation who is convicted of an offense under subdivision (a) shall be punished by imprisonment in the county jail for a term not to exceed one year, or in state prison, or by a fine not to exceed ten thousand dollars ($10,000), or by both this fine and imprisonment.”)

2 Penal Code 16460 PC – Destructive device defined. (“(a) As used in Sections 16510, 16520, and 16780, and in Chapter 1 (commencing with Section 18710) of Division 5 of Title 2, “destructive device” includes any of the following weapons: (1) Any projectile containing any explosive or incendiary material or any other chemical substance, including, but not limited to, that which is commonly known as tracer or incendiary ammunition, except tracer ammunition manufactured for use in shotguns. (2) Any bomb, grenade, explosive missile, or similar device or any launching device therefor. (3) Any weapon of a caliber greater than 0.60 caliber which fires fixed ammunition, or any ammunition therefor, other than a shotgun (smooth or rifled bore) conforming to the definition of a “destructive device” found in subsection (b) of Section 479.11 of Title 27 of the Code of Federal Regulations, shotgun ammunition (single projectile or shot), antique rifle, or an antique cannon. (4) Any rocket, rocket-propelled projectile, or similar device of a diameter greater than 0.60 inch, or any launching device therefor, and any rocket, rocket-propelled projectile, or similar device containing any explosive or incendiary material or any other chemical substance, other than the propellant for that device, except those devices as are designed primarily for emergency or distress signaling purposes. (5) Any breakable container that contains a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and has a wick or similar device capable of being ignited, other than a device which is commercially manufactured primarily for the purpose of illumination. (6) Any sealed device containing dry ice (CO2) or other chemically reactive substances assembled for the purpose of causing an explosion by a chemical reaction. (b) A bullet containing or carrying an explosive agent is not a destructive device as that term is used in subdivision (a).”)

4 See People v. Rubalcava (2000) 23 Cal.4th 322, 328. (“Accordingly, defendant's intended use [of a weapon, including a bomb or other destructive device] is not an element of the crime, and “no further mental state beyond willing commission of the act proscribed by law” is necessary.”)

5 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2570 – Possession of Destructive Device (Pen. Code § 18710). (“To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant possessed a destructive device; 2 The defendant knew (he/she) possessed it; AND 3 The defendant knew that what (he/she) possessed was a destructive device.”)

6 California Jury Instructions – Criminal [CALJIC] 12.00 -- Possession of a controlled substance firearm [compare to legal definition of possession of destructive device]. ("In order to prove this crime, each of the following elements must be proved: 1 A person exercised control over or the right to control an amount of __________, a controlled substance; 2 That person knew of its presence; 3 That person knew of its nature as a controlled substance; and 4 The substance was in an amount sufficient to be used as a controlled substance."

7 California Jury Instructions – Criminal [CALJIC] 12.43. Felon with a firearm [compare to legal definition of possession of destructive device]. ("In order to prove this crime, each of the following elements must be proved: [1] A person previously has been convicted of [a felony] [the crime of ] [two or more convictions of section 417, subdivision (a)(2) of the [California] Penal Code]; [2] That person [owned] [purchased] [, or] [received] [had in [his] [her] possession] [or] [had under [his] [her] custody or control] a __________; and [3] That person knew of the presence of the firearm.")

See also Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed [including possession of a bomb or other destructive device], the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”)

14 See same, possession: constructive possession. (“(18c) 1. Control or dominion over a property [such as a bomb or destructive device] without actual possession or custody of it. — Also termed effective possession.”)

See also CALCRIM 2570 – Possession of Destructive Device (Pen. Code § 18710), endnote 5, above. (“[A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]”)

15 CALCRIM 2570 – Possession of Destructive Device (Pen. Code § 18710), endnote 5, above. (“[Two or more people may possess something at the same time.]”)

20 See same. See also Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment, endnote 9 above.

21 See same.

22 Penal Code 18780 PC – Destructive device or explosives violations; ineligibility for probation or suspension of sentence. (“A person convicted of a violation of this chapter shall not be granted probation, and the execution of the sentence imposed upon that person shall not be suspended by the court.”)

23 Penal Code 19000 PC – Possession of destructive device; public nuisance; injunction; destruction. (“(a) Possession of any destructive device in violation of this chapter is a public nuisance. (b) The Attorney General or district attorney of any city, county, or city and county may bring an action in the superior court to enjoin the possession of any destructive device. (c) Any destructive device found to be in violation of this chapter shall be surrendered to the Department of Justice, or to the sheriff or chief of police, if the sheriff or chief of police has elected to perform the services required by this section. The department, sheriff, or chief of police shall destroy the destructive device so as to render it unusable and unrepairable as a destructive device, except upon the filing of a certificate with the department by a judge or district attorney stating that the preservation of the destructive device is necessary to serve the ends of justice.”)

24 Penal Code 18715 PC – Reckless or malicious possession of destructive device or explosive prohibited; punishment (“(a) Every person who recklessly or maliciously has in possession any destructive device or any explosive in any of the following places is guilty of a felony: (1) On a public street or highway. (2) In or near any theater, hall, school, college, church, hotel, or other public building. (3) In or near any private habitation. (4) In, on, or near any aircraft, railway passenger train, car, cable road, cable car, or vessel engaged in carrying passengers for hire. (5) In, on, or near any other public place ordinarily passed by human beings. (b) An offense under subdivision (a) is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for a period of two, four, or six years.”)

25 See same.

26 Immigration & Nationality Act (“INA”) 237, 8 U.S.C. 1227 – Deportable aliens. (““(a) Classes of deportable aliens: Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . . (2) Criminal offenses . . . (C) Certain firearm offenses Any alien who at any time after admission is convicted under any law [including Penal Code 18710 PC] of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of Title 18) in violation of any law is deportable.”)

27 Penal Code 18900 PC – Permit to conduct business using, or to possess or transport destructive devices; ineligibility; applications. (“(a) Every dealer, manufacturer, importer, and exporter of any destructive device, or any motion picture or television studio using destructive devices in the conduct of its business, shall obtain a permit for the conduct of that business from the Department of Justice. (b) Any person, firm, or corporation not mentioned in subdivision (a) shall obtain a permit from the Department of Justice in order to possess or transport any destructive device.”)

29 See same. (“[The defendant did not unlawfully possess a destructive device if (he/she) had a valid permit to do so. The People have the burden of proving beyond a reasonable doubt that the defendant did not have a valid permit. If the People have not met this burden, you must find the defendant not guilty of this crime.]”)

30 West Covina criminal defense lawyer Michael Scafiddi was an officer and sergeant with the Ontario Police Department for years before he became an attorney. Because of this, he knows all the inside tricks police officers and prosecutors use when they pursue people for crimes, including possession of explosives and destructive devices. He is on a first-name basis with judges and prosecutors throughout the Inland Empire.

31 Penal Code 18800 PC – Exemptions [from prosecution for possession of explosives]; peace officers; military forces; firefighters. (“(a) Nothing in this chapter prohibits the sale to, purchase by, or possession, transportation, storage, or use of, a destructive device or explosive by any of the following: (1) Any peace officer listed in Section 830.1 or 830.2, or any peace officer in the Department of Justice authorized by the Attorney General, while on duty and acting within the scope and course of employment. (2) Any member of the Army, Navy, Air Force, or Marine Corps of the United States, or the National Guard, while on duty and acting within the scope and course of employment. (b) Nothing in this chapter prohibits the sale to, or the purchase, possession, transportation, storage, or use by any person who is a regularly employed and paid officer, employee, or member of a fire department or fire protection or firefighting agency of the federal government, the State of California, a city, county, city and county, district, or other public or municipal corporation or political subdivision of this state, while on duty and acting within the scope and course of employment, of any equipment used by that department or agency in the course of fire suppression.”)

32 Penal Code 18720 PC – Possession without permit of materials to make destructive device or explosive prohibited; punishment [compare to law against possession of explosives]. (“Every person who possesses any substance, material, or any combination of substances or materials, with the intent to make any destructive device or any explosive without first obtaining a valid permit to make that destructive device or explosive, is guilty of a felony, and is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.”)

33 See same.

34 Penal Code 18730 PC – Sale or transportation of destructive devices prohibited; punishment [compare to law against possession of explosives]. (“Except as provided by this chapter, any person, firm, or corporation who, within this state, sells, offers for sale, or knowingly transports any destructive device, other than fixed ammunition of a caliber greater than .60 caliber, is guilty of a felony and is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.”)

35 Penal Code 18740 PC – Possessing, exploding or igniting destructive device or explosive with intent to injure, intimidate or terrorize prohibited; attempt; punishment [compare to law against possession of explosives]. (“Every person who possesses, explodes, ignites, or attempts to explode or ignite any destructive device or any explosive with intent to injure, intimidate, or terrify any person, or with intent to wrongfully injure or destroy any property, is guilty of a felony, and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for a period of three, five, or seven years.”)

36 Penal Code 18745 PC – Igniting or exploding destructive device or explosive with intent to commit murder prohibited; attempt; punishment [compare to law against possession of a bomb or destructive device]. (“Every person who explodes, ignites, or attempts to explode or ignite any destructive device or any explosive with intent to commit murder is guilty of a felony, and shall be punished by imprisonment in the state prison for life with the possibility of parole.”)

37 Penal Code 18750 PC – Willfully and maliciously exploding or igniting destructive device or explosive and causing bodily injury prohibited; punishment [compare to law against possession of a bomb or destructive device]. (“Every person who willfully and maliciously explodes or ignites any destructive device or any explosive that causes bodily injury to any person is guilty of a felony, and shall be punished by imprisonment in the state prison for a period of five, seven, or nine years.”)

38 Penal Code 18755 PC – Willfully or maliciously exploding or igniting destructive device or explosive causing death, mayhem or great bodily injury prohibited; punishment [compare to law against possession of a bomb or destructive device]. (“(a) Every person who willfully and maliciously explodes or ignites any destructive device or any explosive that causes the death of any person is guilty of a felony, and shall be punished by imprisonment in the state prison for life without the possibility of parole. (b) Every person who willfully and maliciously explodes or ignites any destructive device or any explosive that causes mayhem or great bodily injury to any person is guilty of a felony, and shall be punished by imprisonment in the state prison for life.”)

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